Wayne Fox Building Contractors Pty Ltd v Everlyn Building Certification Pty Ltd

CITATION:

Wayne Fox Building Contractors Pty Ltd v Everlyn Building Certification Pty Ltd [2010] QCAT 356

PARTIES:	Wayne Fox Building Contractors Pty Ltd
v
Everlyn Building Certification Pty Ltd

APPLICATION NUMBER:

BDL001-10

MATTER TYPE:

Building matters

HEARING DATE:

On the Papers

HEARD AT:

Brisbane

DECISION OF:

Member Ann Fitzpatrick

DELIVERED ON:

26 July 2010

DELIVERED AT:

On the Papers

ORDERS MADE:

The applicant’s claim is dismissed.

CATCHWORDS :

Jurisdiction of Tribunal – certification work – definition of “building work”.

APPEARANCES and REPRESENTATION (if any):

On the Papers

REASONS FOR DECISION

This is an application in the proceeding, by the respondent to dismiss the applicant’s claim on the basis that this Tribunal does not have jurisdiction to hear the subject matter of the claim.

Background

The applicant is a building contractor who was engaged to carry out building works to a home at 4 Bridson Avenue, Ipswich East, Queensland. The respondent carries on business as a private building certifier.
The respondent entered into a written agreement with the applicant to assess building plans for certification as compliant with the Building Code of Australia and the Queensland Development Code. The respondent was also engaged to conduct inspections of the work and to issue Inspection Certificates.
The respondent admits that it failed to identify that the property was in a Character Code Area and as a result a Material Change of Use application (MCU) and approval from the Ipswich City Council was required with respect to the works. Delay has occurred in obtaining approval of the MCU, which was ultimately lodged by the respondent. Delay has also occurred in the Council and the Owners of the property at 4 Bridson Avenue, agreeing on the alterations and additions needed to comply with the area’s character and streetscape.
In the meantime, the applicant alleges that the owners of the property have withheld money from the applicant as a penalty for not obtaining the final certificate.
The applicant asserts in his material before the Tribunal that the respondent was negligent in issuing a Building Approval without a Character Code assessment being carried out. The applicant seeks the following Orders from the Tribunal against the respondent:

(a)The respondent reimburse to the applicant, the monies withheld by the owners, as penalty for not obtaining the final certificate;
(b)The respondent carry out the final inspection to the residence and release the final certificate/ and
(c)The respondent pay the applicant $15,000.00 to carry out alterations to the residence to comply with the Code assessment.

For completeness, I note that the respondent asserts the applicant has not attended to the rectification of defects and that is the reason why the owners of the property have withheld payment.

Respondent’s submissions

The respondent submits that:

(a)the Queensland Civil and Administrative Tribunal (QCAT) exercises the relevant jurisdiction conferred on it by the Queensland Building Services Authority Act 1991 (QBSA Act).
(b)QCAT has jurisdiction to hear “building disputes”, including domestic building disputes. The QBSA Act defines “domestic building dispute” to include “(b) a claim or dispute arising between 2 or more building contractors relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work”
(c)“Building contractor” is defined in the QBSA Act to mean a person who carries out “building work”. “Building work” is said not to include work of a kind excluded by regulation from the ambit of the definition. Section 5 (1) of the Queensland Building Services Authority Regulation provides at subsection (ze) that certification work performed by a building certifier under the Building Act 1975 in the certifier’s professional practice, is not building work for the definition of building work in the QBSA Act.

9. The respondent says that the work performed by the respondent is not building work for the purposes of the QBSA Act so that the QCAT does not have jurisdiction to hear the applicant’s Application

Applicant’s submissions

10. The applicant has not expressly addressed the QCAT’s jurisdiction other than to submit that, because the respondent caused the delay in final certification through failure to perform the Code assessment as part of the Building Approval, the applicant has been owed a considerable amount of money for an unreasonable amount of time.

Findings

11. I agree with and adopt the submissions of the respondent.

12. I have also considered whether the dispute in this case could include that part of the definition of “domestic building dispute” referred to in the QBSA Act as “(c) a claim or dispute in negligence, nuisance or trespass related to the performance of reviewable domestic work other than a claim for personal injuries”. However, I do not consider the certification and inspection work the respondent was engaged to perform amounts to the “performance” of “domestic building work” which is relevantly defined in the Domestic Building Contracts Act 2000 as, “(b) the renovation, alteration, extension, improvement or repair of a home”. I think that performance means the actual physical performance of the renovation or alteration of the home.

13. The decision of Cleary v Bowcock (2005) CCT B695-03, supports my conclusion. In that case Member Lohrisch found that the work of a private Certifier is not work within the definition of “domestic building work” in the Domestic Building Contracts Act 2000 and is not within the definition of “tribunal work” set out in the QBSA Act. At the time of that decision the QBSA Act referred to the Commercial and Consumer Tribunal, however the relevant parts of that definition apply to QCAT which has taken over the functions of the Commercial and Consumer Tribunal.

14. For these reasons I find that this Tribunal does not have jurisdiction to determine this Application, because it involves work performed by a private certifier in that capacity. Accordingly the applicant’s claim is dismissed.

Wayne Fox Building Contractors Pty Ltd initiated proceedings against Everlyn Building Certification Pty Ltd in the Queensland Civil and Administrative Tribunal, disputing the latter's certification services. The crux of the matter revolved around the interpretation and application of the Building Act 1975, specifically concerning the definition of "building work" and the extent of the Tribunal's jurisdiction over disputes involving building certifiers. The applicant sought to have the Tribunal review and potentially overturn the certifier's decision, arguing that the certifier's actions were arbitrary and in breach of the statutory requirements.

The primary legal issue before the Tribunal was whether it had the jurisdiction to review the certifier's decision on the grounds that the certifier had exceeded its statutory powers. Additionally, the court had to determine the correct interpretation of "building work" as defined in the Act and whether this definition encompassed the certifier's actions. The applicant contended that the certifier's decision should be subject to Tribunal review, while the respondent argued that the Tribunal lacked jurisdiction over such certification-related disputes.

The Tribunal considered the statutory framework and relevant case law, concluding that the definition of "building work" in the Act did not include the certifier's actions. Consequently, the Tribunal found that it did not have jurisdiction to review the certifier's decision. The Tribunal held that the statutory scheme established a separate process for reviewing certifiers, which was not within its remit. As such, the Tribunal dismissed the applicant's claim, affirming the respondent's argument that the certification work fell outside the Tribunal's jurisdiction.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established